FRIENDS AND FAMILY
By
Martin A. Cole, Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (February
2007)
We have just
concluded the holiday season, when people traditionally spend time with their
family and with close friends, basking in the warmth of good feelings. While this idyllic scenario does not in fact
play out for everyone, it still represents most people’s dream image of the
holidays. Friends and family also find
their way into several aspects of professional responsibility, in various rules
and matters that have led to discipline.
Not all have shown friends and families at their best,
unfortunately.
Some of the most
intensely contested complaints arise out of family law or estate or conservatorship matters involving children and elderly
family members. Lawyers who practice in
these areas are no doubt aware of the emotional nature of disputes that may
arise between spouses (or exspouses), between
siblings, or between parent and child over custody or distribution of
assets. Family businesses are also a
frequent backdrop to complaints against lawyers. The bitterness between family
members often will be transferred onto the unfortunate lawyers, who are seen as
conspiring with their individual clients to “rob” other family members of what
they believe is rightfully theirs.
Even more intense are
the feelings when the lawyer is a participant in the underlying proceeding — as
a sibling, child or parent — and is representing herself as well.Ftn 1 Legal training is suddenly seen as an unfair
advantage, especially by relatives paying for their own lawyers in the matter.
Thus lawyers,
especially those who practice in the area of family law, know their practice is
at high risk of complaints, sometimes despite their best efforts. Complaints from an opposing party may be
difficult to predict or avoid. There are
many quality family law practitioners, however, who never generate complaints
from clients or from the other party.
Diligence, good communication skills, and civility towards all
participants in the process (even when your client desires you not to be civil)
usually are the keys to professionalism.
Within the Minnesota
Rules of Professional Conduct (MRPC), there are two rules that specifically
apply to friends and families, and each rule treats them somewhat
differently. Rule 1.8(c) restricts
lawyers in most instances from drafting instruments that leave substantial
gifts to the lawyer or to the lawyer’s family. Rule 7.3 restricts most in-person and
telephone solicitation of legal business except from close personal friends and
family, and individuals with whom the lawyer has a prior professional
relationship.Ftn 2
Rule 1.8(c) states
that a lawyer “shall not prepare an instrument giving the lawyer or a person
related to the lawyer as parent, child, sibling, or spouse any substantial gift
from a client, including a testamentary gift, except where the client is
related to the donee.” The American Bar Association (ABA) Model
Rules of Professional Conduct extend the exception contained in Rule 1.8(c)
further than does Minnesota. The Model
Rule also allows lawyers to prepare instruments leaving gifts to the lawyer or
her family for clients “with whom the lawyer or the client maintains a close,
familial relationship.” When the MRPC
were comprehensively amended in October 2005, even with the goal to bring
Minnesota’s version of the rules closer to the Model Rules, this language was
not adopted.
Complaints have arisen
in the past two years from an attorney’s drafting of a will for a client and
from the handling of a real estate transfer.
Had the “close, familial” language been part of Minnesota’s rule, it could
have changed the result in both cases.
In the one matter, the attorney asserted that the close, family-like
relationship he had maintained with his client, for whom he had drafted a will,
was such that a bequest of $10,000 to the lawyer should not be found
improper. A Lawyers Board panel
disagreed and issued an admonition to the lawyer,Ftn 3
since, as noted, Minnesota does not recognize such an exception to Rule
1.8(c). Nevertheless, the fact that the
lawyer in fact was a close friend of the testator likely was a significant
factor in keeping the panel from finding that public discipline was warranted.
The second matter also
resulted in a panel issuing an admonition to the attorney. In that instance the dynamic of the modern
extended and blended family also was at issue.
The lawyer drafted a deed for his wife’s elderly stepfather,
transferring property to the lawyer’s daughter.
His wife’s mother had died previously.
The lawyer argued that the client still was a family member. While the step-grandfather/step-granddaughter
relationship was arguably “family-like,” in fact the grantor and grantee were
not related. Other family members, who
may have been beneficiaries of the stepfather’s will, complained that valuable
property no longer was a probate asset.
The admonition also was premised on the
conflicted advice provided by the lawyer, who did not advise the former
stepfather to seek independent counsel, even though the transaction benefited
the lawyer’s immediate family.Ftn 4
UP CLOSE AND PERSONAL
Just such a “close
personal” relationship exception was added, rather than deleted, in the October
2005 amendments to Minnesota’s Rule 7.3, to match the ABA Model Rule. Previously, Minnesota’s solicitation rule
allowed in-person or live telephone contact, when the motive is pecuniary, only
with family members or individuals with whom the lawyer had a prior
professional relationship.Ftn 5 Now the lawyer is permitted such
contact with individuals with whom the lawyer has a “close personal”
relationship.Ftn 6
Why the differing
treatment? Solicitation of legal
business does not involve the transferal of possibly large amounts of money or
property to the lawyer or her family, as does the drafting of a will or
deed. The potential for an overly
elastic interpretation of who is such a close, personal friend (or family-like
person) is therefore less of a concern in the solicitation situation. Individuals who have such a relationship with
the lawyer may well turn to the attorney naturally to handle their legal
affairs. Thus, the need for time to
reflect or seek independent advice does not seem as essential in this
situation. Complaints concerning
in-person or telephone solicitation of legal business are uncommon, so it may
take some time to determine whether the addition of the “close personal”
relationship to the rule’s exceptions will have much impact.
OTHER RULES
Family relationships
figure prominently in certain other rules connected with the lawyer discipline
system. For example, Rule 30, Rules on
Lawyers Professional Responsibility, established an administrative suspension
for an attorney who is in arrears in payment of maintenance or child support
and who has not entered into a payment agreement. Upon receipt of a court order or report from
an administrative law judge pursuant to Minn. Stat. §518.551(12), the
Director’s Office shall file a motion with the Supreme Court requesting
administrative suspension until the arrearages are paid
or the attorney enters into a payment plan.
Finally, attorneys who
failed to comply with the requirements for continuing legal education (CLE) and
were then placed on restricted status once had particular reason to attend to
their family relationships. Prior to
2000, an attorney on restricted status was authorized to represent himself and
certain close relatives. Under Rule 12,
Rules of the Board of Continuing Legal Education, a restricted attorney is now
prohibited from representing anyone except himself or herself. Many lawyers remain unaware of this change,
thinking that they can still represent their spouse or child in a legal matter
despite their noncompliance with CLE.
Such representation would constitute the unauthorized practice of law
and violate the MRPC.
The support of caring
family and friends can be a blessing.
Handling legal matters for family and friends, however, can create
professional responsibility issues that must be recognized and dealt with
appropriately.
NOTES
1 A
clear example of such a situation may be found in In re Perry, 494 N.W.2d 290 (Minn. 1992).